Ex-president Jacob Zuma believes he can “sleep at home”, as he put it publicly on Sunday, because the Constitutional Court has accepted to hear his application for a rescission of its 15-month jail term for contempt of court.
Sunday’s deadline to hand himself over in terms of the ConCourt ruling came and went without that happening. It’s now on to stage two of the legal standoff, or the deadline of Wednesday for Police Minister Bheki Cele and National Commissioner Lieutenant-General Khehla Sitole to do everything necessary to bring Zuma to jail to serve his sentence.
It’s that committal order, in legal jargon, that Zuma is seeking to interdict in the Pietermaritzburg High Court on Tuesday.
It’s part of the rapid-fire legal action by his lawyers, including Advocate Dali Mpofu, SC. The opening move was the highly unusual application to the apex court to rescind its 29 June judgment that found Zuma guilty of contempt of court.
The Constitutional Court blinked, and on Saturday, 3 July accepted to hear legal arguments on Monday, 12 July around how it erred and therefore must rescind its judgment.
Segue to the next legal move – the urgent application to the Pietermaritzburg High Court to interdict Cele and the SAPS.
All parties but the State Capture Commission and the Helen Suzman Foundation have filed notices to abide by or to accept the court’s ruling.
The commission, represented by secretary Itumeleng Mosala, opposed Zuma’s urgent interdict on four grounds, including that this application “is a continuation of the pattern of abuse by the applicant of the court process. Courts should not entertain such abuse any longer.”
Much of it is technical. The high court is a lower court than the Constitutional Court and therefore cannot overrule the highest court in South Africa, and Zuma should have approached the latter to argue for a stay of its committal order. Also, that Zuma accepts he did not participate in previous proceedings even though he was aware of them means that choice effectively closed the door to a rescission application.
And because of that Zuma’s rescission application “does not even get out of the first blocks” and has no prospect of success, according to Mosala’s answering affidavit. “This application for a stay should therefore not be entertained. It is, in its bare form, just a stratagem on the applicant’s part to avoid the inevitable – serving his prison sentence.”
The Helen Suzman Foundation has taken a similar approach, echoing the legal arguments for no prospect of success at the Constitutional Court rescission arguments set down for next Monday.
But the foundation takes a harder line on the politicking that permeates Zuma’s legal “meandos”.
“The Republic of South Africa is a constitutional democracy. Mr Zuma’s case strikes at the heart of that constitutional democracy, seeking to subvert an order of the highest court in the land in the context of a profoundly important project, namely the uncovering of corruption and State Capture at the State Capture commission,” according to the court documents by Helen Suzman Foundation legal counsellor Hubrecht van Dalen.
Zuma was seeking a different law for himself, to put himself above the Constitution and “now seeks to enlist this court’s help in his efforts at subverting the Constitutional Court” and its authority as the apex court.
“This was no ordinary case of contempt. It was by an ex-president in relation to matters concerning conduct while he was president; it was in the face of a Constitutional Court order and in the context of the State Capture Commission and its truth-seeing role which was dealing with one of, if not the greatest, threat to our Republic, namely corruption.”
That in a nub summarises at least the past seven months of drama after Zuma walked out of the State Capture Commission on 19 November 2020. That commission chairperson Deputy Chief Justice Raymond Zondo was surprised by this unauthorised departure is a matter of public record, and is also on YouTube for anyone wanting to catch up.
However, Zuma, in his Constitutional Court rescission application documents, seems to blame his lawyers for confusion around his departure.
“… I was scheduled to take my medication and had left the commission premises to do that. My lawyer was asked to convey to the chairperson that I had left the premises on the understanding that I was entitled to leave.”
A series of steps unfolded, from the commission seeking a court order to compel Zuma’s attendance that was issued on 28 January 2021, to the ex-president’s ignoring that amid a series of public statements against the judiciary intimating a witch hunt, and refusal to participate in the subsequent contempt of court proceedings. This was followed by the unusual request by the Constitutional Court for Zuma to make representations, which he declined to participate in, followed ultimately by the Constitutional Court judgment of 29 June sharply criticising the conduct of the ex-president, who twice swore an oath to uphold and respect the Constitution, and the 15-month jail term for contempt.
That should have been the end of it. It wasn’t, as the Pietermaritzburg High Court interdict and Constitutional Court rescission applications show.
South Africa has been here before.
For more than eight years, legal court wrangling over the so-called Spy Tapes ensured Zuma stayed out of the dock on Arms Deal corruption charges. These transcripts of wiretaps of Scorpions leaders Bulelani Ngcuka and Leonard McCarthy were cited by acting prosecutions boss Mokotedi Mpshe on 6 April 2009 as evidence of political motivation – and reason for dropping all charges against Zuma.
This cleared his way to the Union Buildings following the 22 April 2009 elections.
The DA started court proceedings to obtain the Spy Tapes, which were eventually handed over in late 2017. This set a process in motion that saw Zuma charged with 16 counts, including fraud, corruption and money laundering, in April 2018. But it was another three years before Zuma pleaded not guilty, in May 2021. Then that trial was postponed to 19 July over an application for the recusal of lead state advocate Billy Downer.
So, delays by legal strategy and tactics are firmly embedded in Zuma’s arsenal. It’s replayed in what’s happening now in relation to the State Capture Commission and subsequent Constitutional Court proceedings, from ill-health and sick certificates to applications for Zondo’s recusal.
Tuesday’s urgent interdict application comes in two parts, including a constitutional challenge to the Criminal Procedure Act because it does not set down a trial procedure for what the application calls the crime of civil contempt of court.
Even if the high court rules against the urgent interdict, it may agree to hear the constitutional challenge, which may lead to further legal kicking for touch.
When Mpofu, for Public Protector Busisiwe Mkhwebane, argued a two-part application to stay Parliament’s impeachment inquiry pending a rules review, in October 2020 the Western Cape High Court ruled against this in the public interest and for Parliament’s constitutional responsibilities.
The damage arising from Zuma’s legal meandos – political mobilisation by court action is an old tactic in the Zuma playbook, going back to his rape trial, and May 2006 acquittal – is immediate, and unfolds at different levels.
The open violation of the Covid-19 lockdown Level 4 regulations that ban all gatherings, never mind mandatory mask wearing, has further delegitimised the SAPS just days after Police Minister Bheki Cele spoke fire and brimstone about how police would enforce compliance.
While an argument can be made that intervention would have sparked potential chaos and injury, no such qualms seemed to factor in SAPS managing of student and community protests where the killings of demonstrators are not unknown.
NatJoints, or the National Joint Operational and Intelligence Structure that brings together police, spies and soldiers in a structure that’s not established in law or regulation, issued a limp statement that action would come later on the basis of police footage of the gathering at Zuma’s Nkandla homestead.
No such softly-softly for the 441,354 people who had been arrested by 6 May 2021 for contravening lockdown regulations, according to Cele’s recent parliamentary reply. And so for many this softly-softly, hands-off approach – despite the clear violations of law – has reinforced the image of police as bullies.
Hot on the heels of Zuma’s rescission application, Mkhwebane indicated she’d follow suit over the court’s finding that she replaced words in the Executive Ethics Code for a finding that President Cyril Ramaphosa misled Parliament, according to City Press.
But this is based on a continued confusion of the promulgated Executive Ethic Code provision (“A member of the executive may not wilfully mislead the legislature to which they are accountable”) with the revised conduct guidelines to Cabinet adopted, saying members of the executive “may not deliberately or inadvertently mislead the president or the premier, as the case may be”.
With a precedent set, successfully or not, such rescission orders may well puncture the rule of law.
South Africa has been here before. But the 16-month State of Disaster and unrelenting Covid-19 lockdowns have sharpened inequality, worsened poverty and deepened food insecurity and hunger.
South Africa 2021 is a significantly more fraught and fragile country. And what’s unfolding now in the courts – and outside – may turn out not to be the long game, but the end game. DM